AH – 34
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN
IN THE MATTER OF THE GRIEVANCE OF FIREMAN/HELPER J. H. LOEWEN
IN THE MATTER OF CLAIM FOR FIREMEN/HELPERS DETAINED AT SASKATOON
SOLE ARBITRATOR: J. A. Hanrahan
There appeared on behalf of the Company:
M. A. Cocquyt – Labour Relations Assistant
A. Clemet – Senior Agreements Analyst
D. C. Fraleigh – Senior Agreements Analyst
And on behalf of the Union:
J. R. Hastie – General Chairman, Winnipeg
A hearing in this matter was held at Montreal, Quebec, on October 18, 1966.
JOINT STATEMENT OF ISSUE:
On May 26, 1964, due to a derailment at Goodeve, Saskatchewan, Trains Nos. 9 and 2, which normally operate on the mainline over the Watrous subdivision between Biggar and Melville, were rerouted via Regina.
Fireman/helper Loewen, who was regularly assigned to trains 1 and 2 between Biggar and Watrous was relieved by a fireman/helper from Sasketoon, who manned the train between Saskatoon and Regina.
Fireman/helper Loewen submitted a claim for 180 miles for all time held at Sasketoon. The claim was declined by the Company. The Brotherhood claims that Article 7.23 of the collective agreement was violated.
This article reads, in part:
7.23 Firemen/helpers cannot be tied up between terminals and continuous time will be paid whether locomotive is alive or dead, unless firemen/helpers are relieved and given transportation to terminal and deadhead mileage paid. Continuous time will be paid until deadheading starts.
The representative for the Brotherhood stressed the wording "unless firemen/helpers are relieved and given transportation to terminal and deadhead mileage paid." Emphasizing the words "to terminal", it was argued the meaning intended was either to the employee’s destination or back to his home terminal. Otherwise, the provision would read:
Unless firemen/helpers are relieved and given transportation to a terminal.
It was claimed this employee was assigned to trains 9 and 2, running from Biggar through Saskatoon to Watrous; that Saskatoon is not a terminal for men working out of Biggar. Therefore, the attempt by management to support their position by stating Saskatoon appears in the list of terminals is unrealistic. Of necessity, it was contended, the word terminal could only mean the terminal to which the men are assigned. In this case, Biggar or Watrous.
Article 8.13 reads, in part:
8.13 Terminal defined:
The following stations constitute terminals within the meaning of the term an may be limited or added to by giving the General Chairman fifteen days’ notice over the signature of the appropriate area officers.
Although Saskatoon appears in this provision it was suggested the words within the meaning of the term could only mean terminals at either end of the run or assignment, namely, Biggar or Watrous.
The representative for the Brotherhood produced four cases in which claims were paid from 1951 to 1958 where firemen/helpers were tied up at points listed as terminals. Of particular significance, it was urged, were the cases involving Biggar firemen named Hoffman and Fox, who were assigned to Biggar and paid for time held at Saskatoon under Article 7.23 of the agreement.
These payments, it was said, were authorized by men who, while they may not excel as interpreters, can claim to their credit many years of experience as Company officials. It was contended that only in recent years the Labour Relations Department has become part of the grievance procedure; that it would be strange if that department could at their whim supersede long-time rulings and understandings made by men who had the authority to make them, thus rendering superfluous the proceedings of grievances under the various steps of the grievance procedure.
For the Company it was stated the normal trip between Biggar and Watrous for Fireman/helper Loewen on trains 1 and 2 involves some 118 road miles. If he had been used on train No. 2’s rerouted equipment via Regina to Melville, he would have been on duty over a road run of some 321 miles. In addition, he would not be located on arrival at Melville at his normal turnaround terminal. On his normal run this would have been Watrous. To locate him at Watrous would have required a deadhead movement from Melville to Watrous, a distance of 129 miles. On that basis he would have had to travel a total distance of some 450 miles to reach his normal turnabout terminal
On the occasion in question Fireman/helper Loewen was relieved from duty at 10:10 p.m. at Saskatoon and an unassigned fireman/helper there manned train No. 2’s rerouted equipment over the Crak subdivision to Regina and an unassigned Regina fireman/helper manned the equipment Regina to Melville over the Qu’Appelle subivision. Loewen was transported to the bunk house at Saskatoon, where he was given sleeping accomodation.
On the following day, May 27, train No. 9 that normally proceeds westward, was able to proceed over its regular route, the derailment having been cleared. When the train arrived at Saskatoon, Fireman/helper Loewen was called to report for duty at 7:04 a.m. to man train No. 1 from Saskatoon to Biggar. That distance is 64 road miles. As this was less than the minimum day he was paid a minimum day of 100 miles in each direction, in accordance with Article 2.4 of the collective agreement. He was also paid initial and final terminal time in accordance with Article 2.5.
For the Company it was urged the first paragraph of Article 7.23 clearly refers to a situation where a fireman/helper cannot be tied up between terminals without being compensated on a continuous time basis unless he is:
(a) relieved of his duties.
It was contended that this employee had not been tied up between terminals. He had been relieved from duty at the terminal of Saskatoon, a designated terminal under Article 8.13. As a consequence Article 7.23 had no application; that where the word terminal is used throughout the agreement it refers to one of the stations listed in Article 8.13.
The representative for the Brotherhood claimed that the four instances showing payment had been made in similar circumstances, indicated the Company in changing that pattern in this instance was actually in violation of Article 14, which reads:
14 It is understood that no change will be made in the application of any rules contained in this contract as interpreted and understood by the signatories to the contract without conference taking place between the General Manager of the Lines affected and the General Chairman of the B.of L.F. and E.
The representative of the Company rejected the suggestion that the four examples, when analyzed, actually represented exactly similar circumstances. Moreover, the Company could produce examples where similar claims had been disallowed and had remained unpaid. Thus no joint interpretation or understanding was established.
The representative for the Company referred the Arbitrator to his statement in a matter between these same parties, heard in November, 1965:
Because reference was made by Mr. Hastie to claims paid in somewhat similar circumstances on the decision of an individual railway official, it perhaps may be usefully emphasized that isolated instances of such payments do not affect the legal interpretation of an applicable provision in a contract unless it contains ambiguity.
It would lessen confusion if such railway officials recognized that despite their comprehensive knowledge of railroading, they may not similarly excel as interpreters of the provisions of a collective agreement. It would be better if they spoke through the experts they employ for the purpose of administering the agreement, namely, members of the Labour Relations Department. This practice would result in the Company speaking with one voice in such matters, whether correctly or not.
Before seeking to answer the question as to whether ambiguity exists in Article 7.23, a reading of Article 14 indicates its lack of a definite pattern for determining who as the right to interpret a provision or rule, and what could definitely illustrate an understanding, creates a potential fertile area for unnecessary disputes.
A comparison may be made to a provision appearing in the agreement between this Company and the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees. It is Article 28 and reads: All questions with respect to the application or interpretation of the provisions of this Agreement shall be referred through the proper officers of the Company to the Personnel and Labour Relations Department. Interpretations when agreed upon will be issued by the Personnel and Labour Relations Department and signed by the signatories to the Agreement.
Before commencing an analysis of Article 7.23 it must be emphasized that what has happened in the past in the administration of a provision in a collective agreement is not to be considered in the interpretation unless there is ambiguity in the language used. If ambiguity does exist, "past practice", as it is commonly called, becomes important in attempting to determine what the parties had in mind in designing the provision
It is well established by arbitration judgments that even though a company over a considerable period has improperly interpreted a provision in an agreement to its own detriment, it has the right to revert to a proper course once that becomes apparent.
The opening statement in Article 7.23 states: firemen/helpers cannot be tied up between terminals..... "The parties to this agreement have specifically defined the meaning to be given the term terminal. Article 8.13 commences "The following stations constitute terminals within the meaning of the term … Sakatoon, of course, is included". With no special meaning given to the term ‘terminal’ for the purpose of Article 7.23, Saskatoon must be recognized therein as a terminal. Admittedly this employee was not held up between his initial terminal and Saskatoon. There is nothing in Article 7.23, therefore, that applies to his situation. He was paid in accordance with the provisions applicable to a fireman/helper arriving at a terminal, namely, in accordance with Article 2.4 and 2.5 of the agreement.
As suggested by the representative for the Company in order for this claim to succeed this agreement would have to contain a provision similar to that found in Article 6.53 of the agreement with the Locomotive Engineers, reading, in part:
Engineers … may be tied up at any point between the initial terminal and the point for which called and the tie-up point shall be recognized as the final terminal.
For these reasons this claim cannot be allowed
Dated at Brampton, Ontario, this 29th day of October, 1966.
J. A. Hanrahan
CLAIM FOR FIREMEN/HELPERS DETAINED AT SASKATOON.
JOINT STATEMENT OF ISSUE:
During April, 1965, several claims for time detained at Saskatoon were submitted by various firemen/helpers on passenger trains. The claims were declined by the Company. The Brotherhood contends that Article 7.5 of the collective agreement was violated.
Article 7.5, headed Detention and Switching at Intermediate Terminals reads:
7.5 Where trains run over more than one subdivision firemen/helpers will be paid all detention and switching at designated terminals between their initial and final points, except that the first ten (10) minutes will not be paid for when dead time is shown on the time table.
The facts disclosed that prior to October, 1964, the passenger station for Saskatoon was not located on the main line but was situated approximately one mile north of it on the Saskatoon subdivision. In October, 1964, the old passenger station was abandoned and a new passenger station opened that was situated on the main line. It was therefore no longer necessary for trains to detour off the Asquith subdivision on to the Saskatoon subdivision and back again onto the Asquith subdivision in order to call at Saskatoon station while enroute from Biggar to Watrous.
The representative for the Brotherhood claimed that the words in Article 7.5 "… where trains run over more than one subdivision …" should be given their literal meaning. As trains involved in this dispute run in both directions between Montreal and Vancouver over at least eleven subdivisions, firemen/helpers detained at Saskatoon, on the Biggar-Watrous run are entitled to the benefit described in this Article.
While this change occurred, as stated, in October, 1964, the practice of paying firemen/helpers on the Biggar-Watrous run on the basis of Article 7.5 continued until April, 1965. A conference not being called, as provided in Article 14 of this agreement, before this change occurred, represented to the Brotherhood a violation of that provision.
Article 14 reads:
14 It is understood that no change will be made in the application of any rules contained in this contract as interpreted and understood by the signatories to the contract without conference taking place between the General Manager of the lines affected and the General Chairman of the B. of L.F. and E.
To this reasoning the representative for the Company replied that once the change was made that confined those on the Biggar-Watrous run to one subdivision, payment under Article 7.5 should have been discontinued. It continued for the period described in error. Finally detected by officials of the Labour Relations Department in Winnipeg, the correction was made to bring the practice within what the Company considers the true intention of Article 7.5. This was that the words "where trains run over more than one subdivision" refer to trains running over more than one subdivision during the tour of duty of a fireman/helper. If during such tour the train is detained or when switching is required at a terminal enroute, compensation accrues under Article 7.5.
It was suggested that the Brotherhood’s interpretation of this Article could produce absurd results. One example, a fireman/helper on a passenger train which operates from Vancouver to Montreal would be entitled to all detention and switching at Saskatoon (and other intermediate terminals enroute in western Canada) because the train on which he is working operates over more than one subdivision during its transcontinental run, despite the fact that the fireman/helper himself only operates on the train between Biggar and Watrous, one subdivision.
On the other hand, if a passenger train originated at Biggar and terminated at Watrous and the fireman/helper was involved in exactly the same amount of detention and switching at Saskatoon as mentioned he would not be entitled to any payment under Article 7.5, because his train operated over only one subdivision during its entire run.
The representative for the Company referred to the Arbitrator’s remarks in [CROA] Case No. 3 submitted to the Canadian Railway Office of Arbitration, heard on July 5, 1965:
It is cardinal rule of interpretation that no instrument should be construed in a manner that would bring about an absurd result. A decision of the Supreme Court of Canada, Coffin vs.Glllies (1915) 51 S.C.R. 539, is authority for the propositions that "In construing a contract the grammatical and ordinary sense of the words should be adhered to, unless that would lead to some absurdity, or inconsistency, with the rest of the instrument. in which case the ordinary sense of the words may be modified to avoid such inconsistency."
A study of Article 7.5 convinces of the determining importance in illustrating the intention of the parties to this agreement are the words therein "… between their initial and final points". In other words, claimants for the benefits of Article 7.5 must establish that their train ran over more than one subdivision within the area specified, namely, between their initial and final points. Manifestly, the claimants in this dispute, running between Biggar and Watrous did not comply with that requirement. Their trains ran over only one subdivision.
As mentioned in the Loewen award, the fact that a provision in an agreement has been erroneously construed, as this one was during the period from October, 1964, until April, 1965, does not prevent a proper interpretation placing its administration upon a proper course.
For these reasons this grievance is dismissed.
Dated at Brampton, Ontario, this 29th day of October, 1966.
J. A. Hanrahan